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Tuesday, July 30, 2013

Ind. Courts - "Indianapolis attorney-blogger Paul Ogden faces judicial disciplinary complaint"

Updating this ILB entry from yesterday, Tim Evans has a long story today in the Indianapolis Star that begins:

All he had to do was apologize.

But Paul Ogden wouldn’t — and now the Indianapolis attorney may lose his license to practice law for privately criticizing a judge.

Today, Ogden will attempt to acquit himself at a public hearing conducted by the Indiana Supreme Court Disciplinary Commission.

He’s hanging his defense on the First Amendment’s guarantee of free speech. But the ability to exercise that basic right gets murky when it comes to working lawyers, who relinquish some of their speech protections.

Ogden is expecting the worst but said he’d rather face a suspension or lose his law license than hold his tongue.

“I’m not going to give up my free speech rights,” he insisted.

That response comes as little surprise to those who know Ogden or read his blog at OgdenonPolitics.com, where he often unleashes caustic attacks on politicians and bureaucrats, the legal community and media. Among his targets: the disciplinary commission that now holds his fate.

More from the long story:
While Ogden appears to face an uphill battle in the fight for his legal future, the First Amendment protects his speech, said Margaret Tarkington, an associate professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.

“This really is a problem and not just in Indiana,” Tarkington said. “It is absolutely an encroachment on their (free speech) rights.”

It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.

In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.

Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.

Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.

Posted by Marcia Oddi on July 30, 2013 10:26 AM
Posted to Indiana Courts